Fighting back
Date: 22 June 2007
Authors: Chris Cuddihee
Issue: Vol 157, Issue 7278
Categories: Features, Procedure & practice
The routine use of hearsay evidence in applications for anti-social behaviour orders (ASBOs) has been addressed by the Divisional Court in R (on the application of Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin), [2007] 1 All ER 270. This decision was made in connection with a closure order sought by the Metropolitan Police in accordance with the Anti-social Behaviour Act 2003 (ABA 2003). The decision is likely to apply to all similar forms of civil restraint order, such as ASBOs, foreign travel orders or sex offender prevention orders.
Under ABA 2003, s 2(3), when considering an application for a closure order a magistrates’ court must consider a slightly different test. The court may make a closure order “if and only if it is satisfied” that the premises are:
(i) associated with the use, production or supply of class A drugs;
(ii) associated with serious nuisance or disorder; and
(iii) that a closure order is necessary.
Carol Cleary was a tenant of a flat in a block on a large central London estate. On 10 November 2005 police raided the flat to search for drugs following complaints received by them and the council that drugs were being sold from Cleary’s flat. In the raid police found drugs and some paraphernalia consistent with personal use of class A drugs. Cleary was arrested for the criminal offence of possession of class A drugs—which carries a sentence of up to seven years’ imprisonment. In addition to arresting her, police also issued a closure notice—the first step in an application for a closure order.
Closure order applications
Closure order applications are civil proceedings but ABA 2003 provides no guidance to courts in respect of disclosure, rules of evidence or procedure. The Civil Procedure Rules do not apply to magistrates’ courts. As a civil court the magistrates’ court may consider oral and/or written evidence. The European Convention on Human Rights (the Convention) is engaged. A fair hearing in accordance with Art 6 requires proper disclosure by the applicant to the defendant regarding the nature of the case against them. Since these are civil proceedings a court may consider hearsay evidence from either party.
In addition to the drugs found during the raid of 10 November the police case was based exclusively on hearsay witness evidence from two individuals police said were neighbours. These witnesses wished to remain anonymous. Their evidence was set out in witness statements from police officers. The evidence was that Cleary received visitors at all hours of the day and night and that some of these visitors had been seen using drugs in the common parts of the block where she lived. No indication was given within any document when the accounts were recorded, whether they were recorded verbatim, in a handwritten form or tape-recorded, or whether or not they had been read over and agreed by the maker of the statement. Cleary’s problem was how to challenge that hearsay evidence.
Cleary had been a tenant at the flat for nine months. Her case was that her block had been known as a place where drug addicts congregated to use drugs before her tenancy began. She stated that users continued to congregate there but that they were neither invited by her nor were they associated with her or her flat. She believed that police officers had communicated to neighbours on the estate that her address was believed to be a well-known crack house before the proceedings, thereby prompting complaints.
Interpretation
ABA 2003 has been interpreted to require closure order applications to be concluded within 14 days of the first police application—thereby running with the life of the closure notice which prohibits anyone entering the premises who is not a lawful occupier. At the first hearing on 11 November 2005—the day after the raid—Cleary told Highbury Corner Magistrates’ Court that she wished to defend the application. Police then served on the defence a collection of witness statements plus summaries of nine police crime reports. These crime reports supplemented the hearsay evidence and were intended to demonstrate that the premises were a source of serious nuisance and disorder. The hearing was adjourned to 25 November 2005, for a full contested hearing.
further disclosure
On Cleary’s behalf I wrote to the director of legal services at the Metropolitan Police outlining the defence case and requesting further disclosure to assist the defence. As disclosed, the police case presented a partial picture of what was happening in and around the block. We asked for further information regarding the hearsay witnesses and for disclosure of all documents relating to each crime report, such as any witness statements taken by police, police notebooks and any records of how and when the complaints were made. We also asked for any evidence to show that there was an extensive history of anti-social behaviour relating to the block that pre-dated Cleary’s move.
In his judgment, Lord Justice May sets out the background to the case as follows:
“She [Cleary] believes that a perception of other residents that her address is the source of the problem was created by the police or the local authority telling people that her premises are believed to be a ‘crack house’...The police had disclosed short summaries only of nine crime reports. The solicitors asked for full copies of the reports with other relevant documents referred to, such as, but not limited to, police notebooks, witness statements and CAD reports. The police had disclosed two so called professional hearsay statements of PC Davidson relating statements made by two residents of Wendling who did not wish to be identified or attend court due to fear of reprisals.
The solicitors asked for copies of the original notes or statements, records of any reports made by the witnesses to the police and details of any convictions of the witnesses. They also asked for details of all arrests in the area, reports to the police of anti-social behaviour or other complaints to the police since 7 February 2005 [the date on which Cleary moved into the block]; and details of any other addresses within a 150 yard radius of 17 Wendling which were suspected of or were the source of the use, supply or production of drugs or the source of serious nuisance or disturbance. A later letter asked for details of complaints of anti-social behaviour from the Queen’s Crescent Estate, since 1 January 2003.”
The police response was surprising and immediate. They stated that they would not disclose any of the information requested on the basis that it was not proportionate to do so.
no adjournment
At the hearing on 25 November 2005 we asked the court to adjourn and order the police to disclose the material requested. The magistrates refused to do so. Their written reasons stated that my office had not requested the disclosure until 10 days after the commencement of the proceedings and that there would be an opportunity for adjournments throughout the contested hearing—and disclosure could be made on points of detail as they emerged in the proceedings. The court concluded that this was compatible with a fair hearing as required by Art 6 of the Convention.
The hearing of 25 November 2005 was not concluded and no closure order was made. We issued a judicial review claim in relation to the magistrates’ court’s decisions.
judicial review claim
The Administrative Court upheld Cleary’s complaint that the magistrates’ court’s approach had been unfair and stated the police ought to disclose relevant information and evidence. May LJ then addressed the issue of the use of hearsay and anonymous hearsay evidence. This was at the heart of the case since it was defence attempts to effectively challenge the anonymous hearsay evidence that had precipitated the move for judicial review.
May LJ cautioned the courts against the uncontrolled use of anonymous hearsay evidence (see box below).
hearsay evidence
The reference to “a civil court” in May LJ’s judgment suggests that this decision is intended to apply to all courts considering applications based on anonymous hearsay evidence. Both magistrates’ courts and county courts may use anti-social behaviour legislation to prohibit defendants from behaving in particular ways or being in particular places. This decision reminds those courts in clear terms that they do not have to accept anonymous hearsay evidence, and advises applicants that they ought not routinely to rely on anonymous hearsay evidence.
The decision provides an invitation to defence practitioners to challenge hearsay evidence. This kind of evidence may be challenged either by written or oral evidence, since a civil court may consider a written statement as evidence. Where that is not possible or practical then the defence may remind a court that it does not have to give any weight to hearsay evidence that cannot be scrutinised either by the defence or by the court. The decision is also a reminder that the Civil Evidence Act 1995 applies to both parties in civil proceedings—the defence may rely on hearsay too.
The decision in Cleary is likely to be relevant to any proceedings where alleged anti-social behaviour is the basis for a claim—whether that be for an ASBO in the magistrates’ court or a possession order or injunction in the county court. The government’s recent Respect Action Plan suggests that these types of proceedings are likely to be extended and until now it has proved difficult to persuade courts to reject anonymous hearsay evidence. This decision appears to change that. It provides defendants with considerable support when challenging anonymous hearsay evidence—support that was simply not there before.
Chris Cuddihee is a solicitor at Kaim Todner LLP
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